Citation Nr: 1206347
Decision Date: 02/21/12 Archive Date: 03/01/12
DOCKET NO. 09-37 164A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia
THE ISSUES
1. Entitlement to an initial disability rating greater than 50 percent for posttraumatic stress disorder (PTSD) with associated major depressive disorder and alcohol dependence.
2. Entitlement to a total disability rating based on individual unemployability (TDIU).
3. Entitlement to a disability rating greater than 30 percent for splenectomy.
4. Entitlement to a compensable disability rating for simple fracture, left 10th rib.
5. Entitlement to a compensable disability rating for residuals, fracture, ramus, right mandible.
REPRESENTATION
Appellant represented by: Heather E. Vanhoose, Attorney At Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
April Maddox, Counsel
INTRODUCTION
The Veteran had active service from July 1955 to August 1975.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2009 and October 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.
The March 2009 rating decision granted service connection for PTSD with associated major depressive disorder and alcohol dependence, assigning a 10 percent disability rating effective November 24, 2006, the day of the Veteran's claim for service connection and assigning a 30 percent disability rating effective February 5, 2009, the day of a VA psychiatric examination. In June 2010, the RO increased the rating for the Veteran's PTSD to 50 percent disabling, effective November 24, 2006. The Veteran's appeal for a higher rating remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).
The October 2010 rating decision continued previously assigned disability ratings for the Veteran's PTSD, splenectomy, left 10th rib, and right mandible and denied a TDIU.
The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in November 2011. A transcript of this proceeding has been associated with the claims file. While at this hearing the Veteran submitted a signed waiver of RO review for any newly submitted evidence.
The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.
The issues of entitlement to increased ratings for splenectomy, left 10th rib, right mandible, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
The Veteran's PTSD with associated major depressive disorder and alcohol dependence is currently manifested by no more than some occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and mood due to symptoms including suicidal ideation; near-continuous panic or depression affecting his ability to function independently; and difficulty adapting in stressful circumstances.
CONCLUSION OF LAW
The criteria for an initial disability rating disability of 70 percent for PTSD with associated major depressive disorder and alcohol dependence have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 9411 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
This appeal arises out of the Veteran's claim that his service-connected PTSD is more disabling than currently evaluated. In May 2006 correspondence the Veteran's late wife wrote that the Veteran experienced suicidal ideation and significant absenteeism from work due to his PTSD. During the November 2011 Travel Board hearing the Veteran reported that he quit his job in September 2009 and experienced suicidal ideation.
General Legal Criteria
Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.
"Staged ratings" or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994).
1. PTSD with associated major depressive disorder and alcohol dependence
The Veteran's service treatment records are negative for psychiatric problems. He submitted an initial claim for service connection for PTSD in January 2004. While service connection was initially denied by rating decision dated in July 2004 for lack of a diagnosis of PTSD and lack of a confirmed stressor, the Veteran subsequently submitted a new claim for service connection in November 2006 along with a diagnosis of PTSD beginning in May 2005 and evidence that he was subjected to mortar attacks while stationed in Da Nang, Vietnam, thus confirming a claimed stressor. Thus, by rating decision dated in March 2009 the RO granted service connection for PTSD.
The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411. Under that code, a 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.
A 70 percent rating for PTSD is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships. Id.
A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id.
The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as indicating moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61 to 70 is indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. A score of 71 to 80 indicates that, if symptoms are present at all, they are transient and expectable reactions to psychosocial stressors with no more than slight impairment in social and occupational functioning. See Carpenter v. Brown, 8 Vet. App. 240, 242- 244 (1995). GAF scores are generally used in examinations reports regarding veterans' psychiatric disabilities.
Evidence relevant to the current level of severity of the Veteran's PTSD includes VA psychiatric examinations dated in February 2009 and September 2010 and a private psychiatric examination report from Dr. J.A. dated in May 2010. During the February 2009 VA examination the Veteran reported that after military service he worked as a school bus driver, truck driver, coal miner, pump repairperson, and at the time of the examination, he worked part-time as an armed guard. Problems occupationally have included over-reacting but he indicated that he stayed controlled and was able to stop himself at times. He was also avoidant and withdrawn. He indicated that he had been married to his current wife for 51 years and had three children which he was close to. He reported a history of domestic violence which was in remission and continued verbal abuse. He also indicated that he was withdrawn, reclusive, and intolerant socially. The Veteran indicated that he maintained contact with his extended family but, at times, he was somewhat estranged with his only sibling. However, the Veteran indicated that he stayed in touch with his three grown children and grandchildren. At the time of the examination the Veteran complained of anxiety, tension, and insomnia. He denied current suicidal ideation or attempts but indicated that he did experience suicidal ideation intermittently, most recently one month earlier. He denied suicidal attempts and homicidal ideation. He denied current psychiatric treatment. On mental status examination the Veteran was adequately groomed. He was initially guarded and suspicious but as the examination went on he became more relaxed. Gait was within normal limits but he appeared tense and agitated. He reported that he was active and worked "all the time." The Veteran reported intermittent startled reactions. Speech was spontaneous with normal rate, rhythm, clarity, and volume. He was well oriented to situation, time, place, and person. Abstract reasoning was intact. He exhibited broadly average intelligence with cognitive functioning sufficient for the purposes of the visit. Attention and concentration were intact and memory was within normal limits. He did, however, exhibit slowed procession, concentration, and sustained attention was problematic. SLUMS (Saint Louis University Mental Status) with within normal limit and both judgment and insight were fair. His affect showed a full range, he was tearful at times, specifically reactivity to trauma reminders. His thought process was goal directed and organized. With regard to thought content he reported intermittent suicidal thoughts but denied both homicidal thoughts and delusional ideation. He reported frequent intrusive thoughts related to trauma memories. Perceptual oddities/abnormalities were intermittent and reality contact was intact. With regard to sleep disturbance the Veteran demonstrated moderate initial insomnia and severe middle insomnia. He had trauma-related dreams but did not remember the content. He checked both the doors and windows multiple times each month to make sure that they were locked. With regard to activities of daily living the Veteran demonstrated adequate dress/grooming/hygiene. Manage of finances was also adequate. He avoided shopping and was medication complaint. With regard to driving/traveling he was controlling and angry at times. The Veteran denied any leisure activities and, with regard to chores/household maintenance he over-worked to distract.
The Veteran reported a history of panic attacks. He indicated that the attacks occurred often after returning from military service and that currently they occur less often, only rarely. At other times it was elevated anxiety. The panic attacks were characterized by sudden onset with rapid escalation with accelerated heart rate, shaking, and sensations of shortness of breath. These symptoms lasted only a number of minutes and, thereafter, began to subside, after which the Veteran reported feeling emotionally exhausted or drained. There was mild and recurrent depression.
The Veteran denied flashbacks but his wife reported that he had suffered flashbacks "a few times over the years." There was no psychological distress or reactivity on exposure to internal or external cues that symbolize or resemble an aspect of a trauma. The Veteran reported that "most of the time" he made efforts to avoid thoughts/feelings/conversations related to trauma. He had an inability to recall an important aspect of the trauma. There was markedly diminished interest or participation in significant activities. Feelings of detachment or estrangement from others were severe. The Veteran reported a restricted range of affect "most of the time" of moderate intensity. He had a moderate sense of a foreshortened future. The Veteran had difficulty falling or staying asleep. He awakened each night at 2:00 to 3:00 am and has difficulty falling back to sleep. He slept an average of four hours each night. He demonstrated persistent irritability with anger outbursts at least a few times a week. He experienced moderate difficulty with concentrating, hypervigilance, and exaggerated startle response.
The examiner diagnosed PTSD, chronic and prolonged, rule out depressive disorder, NOS (not otherwise specified) secondary to PTSD (after the alcohol dependence is treated) and alcohol dependence secondary to PTSD. The examiner also assigned a GAF score of 60.
During the May 2010 private examination the Veteran reported that his wife died of cancer in February 2010 and that he now lived along in a townhouse that he rented. He also reported that he left his job in September 2009 due to his "bad temper, had a gun, PTSD." His current income was from Social Security retirement and Army retirement.
Dr. J.A. reported that the Veteran's self-presentation was alert but somewhat vague and his attitude toward the examination was slightly irritable. Attention span was average and psychomotor activity was increased. Speech patterns tended to be relevant, coherent, and appropriate to the conversation. Ability to abstract and calculations were also somewhat impaired. Affect was somewhat diminished. When asked about his mood the Veteran stated"-uhh, down in the dumps" and described his usual mood as "bad all the time." The Veteran denied any wide mood swings but reported emotional lability "so mad." The Veteran described depression which began during military service and indicated that he felt depressed most of the time, for months at a time and now on a daily basis. He described the feeling as "just like run down, no."
The Veteran reported that he started feeling like killing himself years ago, when asked about attempts he stated "started too, got rid of the guns" but he continued to have the feelings. When asked about intent or plans he stated "not yet." He reported a low energy level and draining fatigue most of the time. He denied any mania or hypomania. The Veteran described frequent agitation and psychomotor pressure, with pacing the floor and anxiety which started at some indefinite time in the past. He experienced this "a lot" and also complained of "nervous shaking" several times a week lasting for about ten minutes. He denied any unusual phobias or fears. As to anger the Veteran stated "well no friends and don't want any, take off walking." He was having a lot of difficulties with anger on his last job as a security officer. The Veteran denied any feelings of harm toward others and denied any history of assaults. He denied any obsessions or compulsions. He admitted to paranoid attitudes of distrust and was constantly on guard and hyper vigilant. As to hallucinations he reported that he hears noises and sees things moving by the window which makes him go out to check and see what it is. The veteran denied any thought reading or thought insertion. When asked about disturbing, strange or frightening thoughts or impulses he stated "not sure." The Veteran denied any feelings of supernatural forces, influences, special powers, or gifts. Interpersonal relationships were somewhat disturbed and the Veteran indicated that he never had very many friends. This was worse now since his wife died and he adopted a touchy, suspicious, and resentful posture. He showed almost total alienation from others. The Veteran was oriented to time, place, and person. His memory was intact, although somewhat spotty and inexact for specifics. Associations were relevant and the stream of thought was normal. Sleep patterns were marked by incessant initial insomnia with intermediate and early awakening, also nightmares, but he could not remember the content. The examiner diagnosed the Veteran with PTSD, chronic, severe along with major depressive disorder and alcohol abuse and assigned a GAF score of 45. The examiner opined that the Veteran's PTSD symptoms were significant and caused major impairment in interpersonal and other functioning both on the job and off the job.
During the September 2010 VA examination the Veteran reported that he was seeking treatment for his PTSD (individual psychotherapy) and was taking medication. He reported an increase of depression including social withdrawal, decreased motivation, sleep disruption, loss of appetite, and attention and concentration difficulties. He reported that these symptoms occur daily and worsen at night. He also stated that he had rapid heart rate three to four days weekly. After his wife died he mained a relationship with a woman over the summer but that ended when she moved out of the area. He maintained contact with his two children who lived out of stated and saw his son who lived close by every week. He described their relationship as "OK." The Veteran reported that he had three grandchildren and that he had contact with one granddaughter he saw regularly. The Veteran reported that he avoided social activities. He also stated, however, that he mained contact with friends from employment and visited them at their place of work every one to two months. He stated that a friend called him two to three times daily for support and that his son called frequently. Activities of leisure pursuits included watching television and reading the newspaper. There were no suicide attempts and no history of violence/assaultiveness. The Veteran reported that he drank a "6 pack daily" due to his depression.
On psychiatric examination the Veteran was appropriately dressed. Psychomotor activity and speech were unremarkable. His attitude was cooperative toward the examiner. His affect was flat and his mood was anxious and depressed. His attention was intact and he was oriented to person, time, and place. Thought process and thought content were unremarkable and there were no delusions. With regard to judgment the examiner noted that the Veteran understood the outcome of behavior. Intelligence was average and the Veteran demonstrated insight in recognizing that he had a problem. The Veteran reported significant sleep impairment. Significantly, he slept only "4 hours on a good night." He reported difficulty initiating and maintaining sleep with repeated wakenings in reaction to noises and nightmares. He stated he often woke early, around 2:30 to 3:00 am, and could not go back to sleep. He also reported fatigue and sleepiness during the day but did not nap. There were no hallucinations and there was no inappropriate behavior. The Veteran interpreted proverbs appropriately. He did not have either obsessive/ritualistic behavior and did not have panic attacks. There were no homicidal or suicidal thoughts. Impulse control was good and there were no episodes of violence. The Veteran had the ability to maintain minimum personal hygiene and there were no problems with activities of daily living. Memory was normal.
With regard to occupational impairment, the Veteran reported that he quit his job as a federal security guard out of concern he "might do something... go off on someone," and reported having increased verbal altercations with others. Regarding his work he stated, "people were crazy... I got tired of dealing with them."
The examiner continued a diagnosis of PTSD, alcohol dependence, and depressive disorder and assigned a GAF score of 55. The examiner wrote that the Veteran claimed irritability, anger, and impatience with others had increased since his last examination. He stated that he quit his job as a result of these increased symptoms. The examiner noted that the Veteran's wife died earlier in the year. The veteran's alcohol use also continued to be a problem. Furthermore, the examiner noted that the Veteran left his job voluntarily, which did not suggest unemployability. It appeared more likely than not that the increases in symptoms were related to the recent loss of his wife and life changes.
Also of record are VA outpatient treatment records dated from August 2004 though November 2011 showing treatment for the Veteran's PTSD. Significantly, the Veteran was first diagnosed with PTSD in May 2005 and assigned a GAF score of 60. Subsequently he was assigned a GAR score of 65 in November 2009 and 49 in March 2010.
After a careful review of the objective medical evidence, which involves evidence over approximately three years and includes a number of treatment reports, the Board finds that the evidence supports a grant of an initial 70 percent disability evaluation for the Veteran's PTSD, effective from the date of the grant of service connection. The evidence clearly shows the Veteran to be severely disabled as a result of his service-connected PTSD. He was shown to have occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and mood due to symptoms including suicidal ideation; near-continuous panic or depression affecting his ability to function independently; and difficulty adapting in stressful circumstances.
Although a 70 percent evaluation has been granted for PTSD, the Board finds that the evidence does not show the symptomatology required for a 100 percent rating under the rating schedule. In other words, there is a lack of evidence of symptoms of total occupational and social impairment, such as gross impairment in thought processes or communication, persistent delusions or hallucinations, intermittent inability to perform activities of daily living, or memory loss of vital information. The Veteran's speech and though process have not been a problem, he is well oriented, and there is no evidence of a problem with hygiene. While the Veteran is not gainfully employed the most recent VA examiner in September 2010 noted that the Veteran left his job voluntarily, which did not suggest unemployability. Rather, the examiner opined that it was more likely than not that the increases in symptoms were related to the recent loss of his wife and life changes. He is clearly able to perform all activities of daily living, can drive an automobile, and has not been shown to manifest any persistent danger of hurting himself or others. Also, the Veteran has maintained lasting relationships with his children and grand-children and, up until recently his wife. Consequently, the Board finds that the total disability picture warrants a 70 percent evaluation but no more.
The Board also finds that no higher evaluation can be assigned pursuant to any other potentially applicable diagnostic code. Because there are specific diagnostic codes to evaluate PTSD consideration of other diagnostic codes for evaluating the disability does not appear appropriate. See 38 C.F.R. § 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability). See Butts v. Brown, 5 Vet. App. 532 (1993).
In deciding the Veteran's claim, the Board has considered the Court's determination in Fenderson v. West, 12 Vet. App. 119 (1999) and whether he is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
The Board does not find evidence that the Veteran's disability evaluation should be increased for any separate period based on the facts found during the appeal period. The evidence of record supports the conclusion that he is not entitled to an evaluation greater than 70 percent during any time within the appeal period.
The Board has also considered his statements that his disability is worse than evaluated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").
In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, far more probative are the examination reports prepared by skilled professionals. Such competent evidence concerning the nature and extent of the Veteran's PTSD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated.
The Board finds that the Veteran has presented credible lay evidence. However, such evidence does not provide a basis for a higher evaluation. Furthermore, other than requesting higher evaluations, his pleadings have been non-specific. However, the Board does find that the Veteran's reports to the examiner to be competent and credible.
As such, the Board finds the examination reports to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). In conclusion, the Board finds that the preponderance of the evidence is against an increased rating for the claimed disability and the appeal is denied.
Extraschedular Consideration
The Veteran has argued that his service-connected PTSD has affected his ability to maintain substantially gainful employment. The Board will now determine whether referral for an extraschedular rating is warranted. See Barringer v. Peake, 22 Vet. App. 242 (2008).
Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's PTSD. The competent medical evidence of record shows that his PTSD is primarily manifested by some occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking and mood due to symptoms including suicidal ideation; near-continuous panic or depression affecting his ability to function independently; and difficulty adapting in stressful circumstances. The applicable diagnostic codes used to rate the Veteran's PTSD provide for ratings based on such symptomatology. See DC 9411. Thun v. Peake, 22 Vet. App. 111 (2008).
The effects of the Veteran's disability has been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Thun, 22 Vet. App. at 111.
Notice and Assistance
Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).
In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case.
Nevertheless, the record reflects that the appellant was provided a meaningful opportunity to participate effectively in the processing of his claim such that the notice error did not affect the essential fairness of the adjudication now on appeal. The appellant was notified that his claim was awarded with an effective date of November 24, 2006, the date of his claim, and initial ratings were assigned. He was provided notice how to appeal that decision, and he did so. He was provided a statement of the case that advised him of the applicable law and criteria required for a higher rating and he demonstrated his actual knowledge of what was required to substantiate a higher rating in his argument included on his Substantive Appeal. Also, he was provided pre-adjudicatory notice that he would be assigned an effective date in accordance with the facts found as required by Dingess, by correspondence dated in January 2007. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006).
Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).
VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant adequate psychiatric examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.
VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.
ORDER
An initial disability rating of 70 percent for PTSD with associated major depressive disorder and alcohol dependence is granted subject to statutory and regulatory provisions governing the payment of monetary benefits.
REMAND
As above, by rating decision dated in October 2010 the RO continued previously assigned disability ratings for the Veteran's PTSD, splenectomy, left 10th rib, and right mandible and denied a TDIU. The Veteran's representative submitted a written notice of disagreement in November 2010 with regard to these issues. When a notice of disagreement is timely filed, the RO must reexamine the claim and determine if additional review or development is warranted. If no preliminary action is required, or when it is completed, the RO must prepare a statement of the case pursuant to 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought on appeal or the notice of disagreement is withdrawn by the appellant or his or her representative. 38 C.F.R. § 19.26.
As of this date, the Veteran has not been issued a statement of the case on the splenectomy, left 10th rib, right mandible, and TDIU issues. Accordingly, the Board is required to remand this issue to the AMC/RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999).
Accordingly, the case is REMANDED for the following action:
Issue a Statement of the Case regarding the issues of entitlement to increased ratings for the Veteran's splenectomy, left 10th rib, and right mandible disorders as well as entitlement to a TDIU. The AMC/RO should also advise the Veteran of the need to timely file a substantive appeal if he desires appellate review of these issues. Then, only if an appeal is timely perfected, should the issues be returned to the Board for further appellate consideration, if otherwise in order.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
______________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs